January 18, 2021

Volume XI, Number 18

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January 18, 2021

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West Virginia TMDL Litigation Challenging EPA: Total Maximum Daily Load

On January 7, 2015 the Ohio Valley Environmental Coalition, Inc;  Sierra Club;  West Virginia Highlands Conservancy, Inc; and the West Virginia Rivers Coalition filed a Complaint for Declaratory and Injunctive Relief against U.S. EPA, Region III.  The action challenges six (6) final actions by EPA and seeks to compel EPA to perform non-discretionary duties under the CWA.  Those stated six actions were:

EPA’s approval of TMDLs for  selected streams in the Upper Ohio River South Watershed;

EPA’s approval of the TMDLs for selected streams in the Dunkard Creek Watershed;

EPA’s approval of the TMDLs for selected streams in the Lower Kanawha River Watershed

EPA’s approval of the TMDLs for selected streams in the Elk River Watershed

EPA’s approval of the TMDLs for selected streams in the Monongahela River Watershed

EPA’s approval of the TMDLs for selected steams in the West Fork River Watershed

The nondiscretionary duties they seek to compel are EPA’s duties pursuant to 303(d)(2) to disapprove WVDEPs actual and/or constructive submission of no TMDLs for waters in WV that are biologically impaired by ionic stress and to develop such TMDLs for those waters.  It is asserted that WVDEP refused to develop TMDLs for streams that were biologically impaired because “there is insufficient information available regarding the causative pollutants and their associated thresholds for biological TMDL development for ionic toxicity.”  

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© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume V, Number 29
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About this Author

Kathy G. Beckett, Attorney, Environmental, Steptoe-Johnson Law Firm
Member

Twenty-five years experience practicing environmental, regulatory and natural resources law have enabled Kathy Beckett to develop a national reputation for her ability to influence environmental policies on behalf of her clients.  She has been instrumental in the development of national and state regulatory programs and the drafting of environmental legislation. Ms. Beckett is active in many industry trade groups and serves on the Board of Directors of the U.S. Chamber of Commerce and is a past chair of the West Virginia Chamber of Commerce Environmental Committee.   She has also...

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